(please excuse errors in formatting and typos–these are from OCR’ing)

you can find the original brief at:

Click to access conway_response.pdf

IN THE SUPREME COURT OF FLORIDA
TI]E FLORIDA BAR,
Complainant,
V.
SEAN WILLIAM CONWAY,
Respondent
Supreme Court Case No. SC08-326
Lower Tribunal
RESPONDENT SEAN WILLIAM CONWAY’S RESPONSE
TO THIS COURT’S RULE TO SHOW CAUSE ORDER
Pursuant to the order of this court dated June 23,2008 the Respondent, Sean
William Conway, files this response to the order of the Court requesting that he show
cause whether any of his comments which form the basis of the Florida Bar’s
complaint against him should be considered protected speech under the First
Amendment of the United States Constitution.
STATEMENT OF FACTS
Prior to October 18, 2006, Broward Circuit Judge Cheryl Alemana ppointedth e
respondentC, onway,a Floridal awyer,t o represenat defendanitn herc ourtr oomf or
a pendingf elony.l Througha written pleat he defendanwt as arraignedin absentia
tAll of the facts contained within this Statement of Facts have been acquired from the
material which was posted by the respondent on the JAAB Blog.
on October 18, 2006. Six days later on October 24e the clerk of the court sent a
Notice of Trial to the respondent. On October 25’h the Notice of Trial was received
by the Respondent advising him that his client’s trial was scheduled to begin three
business days later on October 30, 2006. Of equal importance, this date was only
eight business days after his client’s araignment.
On October 30fr Conway and his client appeared before Judge Aleman. When
the case was initially called Judge Aleman asked counsel, “[t]rial or continuance?”
If counsel and client wanted time to serve witnesses with subpoenas or to engage in
reasonable discovery, Judge Aleman insisted that defendants, including Conway’s
client, waive their right to a speedy trial as a condition of granting their request for
a continuance.
When the case was recalled approximately two hours later Conway directed
Judge Aleman’s attention to Fla. R. Crim. P. 3.160(d) which specifies that, “[a]fter
a plea of not guilty has been entered the defendant is entitled to a reasonable time
in which to prepare for trial.” (Emphasis added). The trial judge did not directly
respond to counsel’s suggestion that the language of the rule should guide the court
in the matter. As a consequencec, ounsel reluctantly advised the Court that he was
moving for a continuance, as it was the only prudent option available. Judge Aleman
then directed her attention to Conwav’s client and had him affirmativelv waive his
rights to a speedytr ial. The next day, Halloween 2006,C onwayp ostedo n the
JAAR blog2h is viewsc oncerningw hath adt ranspiredin JudgeA leman’sc ourtroom
with respect to his client’s case, as well as all other cases which had been arraigned
on October 18, 20A6 and were thereafter set for trial on October 30, 2006. See
Exhibit -A- Respondent’s JAAB posting dated October 31, 2006. Conway
acknowledgest he following remarks: (1) ooal long with severalo ther attorneys,h ad
to endure her ugly, condescending attitude as one-by-one we all went up to the
podium and noted that our respective clients had just been arraigned on Oct. 18fr as
she forced us to decide between saying ready for trial – or need a continuance”; (2)
“Every atty tried their best to bring reason to that ctroom, but, as anyone who has
been in there knows, she is clearly unfit for her position and knows not what it means
to be a neutral arbitec’; (3) “Evil, unfair witch (“hereinafter “witch”)”; (4) “As my
case was on recall for 2 hours, I watched this seemingly mentally ill judge
condescend each previous attorney”; and (5) “Judge (not your honor b/c there’s
nothing honorable about that malcontent) there seems to be a mistake in this
case.” (Hereinafter the “five remarks”).
2 JAABlog stands for Justice Advocacy Association of Broward blog. It is a forum about
the justice system in the l7h Judicial Circuit.
sTAr\pABp oF REVTEW
The typical standard of review for findings of fact in bar disciplinary
proceedingiss setf orth in Fla.B ar Reg.R . 3-7.6(m)(l)(A):
Ther eferee’sre ports halli nclude:( A) a finding of fact ast o each
item of misconducto f which the respondenits charged,w hich
findings of fact shall enjoy the same presumption of
correctness as the judgment of the trier of fact in a civil
proceeding…
(Emphasisa dded).
However,i n casesin volving the First Amendmentt,h e standardo f review is
de novo:
[O]ur review of petitionersc’ laim that their activity is indeedi n
then atureo fprotecteds peechc arriesw ith it a constitutionadl uty
to conducta n independenet xaminationo f the recorda sa whole,
withoutd eferenceto thet rial court.S ee,BosCe orp.v . Consumers
Uniano f UnitedS tates,Inc.,46U6 .S.4 85,4 99,1 04S .Ct.1 949,
1958,8 0 L.Ed.2d5 02( 1984).T he “requiremenot f independent
appellater eview … is a rule of federalc onstitutionalla w,” id., at
510, 104S .Ct.,a t 1965,w hich doesn ot limit our deferencteo a
trial court on matters of witness credibiliff . . .
Hurley v. Irish-AmericanG ay,L esbiana ndB isexualG roupo f Boston,5 15U .S.5 57,
567, | 15S .Ct.2 344,l 32L.Ed.2d 487( 1995).T hes tandardo f reviewi s no different
in bar disciplinaryc asesin volving expressionG. entilev . StateB ar of Nevada,5 01
U.S.1 030,l l l S.Ct.2 720,2726,11L5. Ed.2d8 88( 1991X”[A]na ppellatceo urth as
an obligationt o omakea n independenet xaminationo f the whole record’ in ordert o
makes uret hat ,thej udgmentd oesn ot constitutea forbiddeni ntrusiono nthe field of
freee xpression”.’) (quotingB oseC orp’,s upra’))’
In Gentile, the Bar’s case, tike this case, rested solety on the lawyer’s own
statements:
Neither the disciplinary board nor the reviewing court explains any
sensein which pltitioner’s statemenths ad a substantialli kelihood of
causingm ateriaiprejudiceT. he only evidencea gainstG entilew ast he
videotapeo f his statementsa nd his own testimonya t the disciplinary
hearing.T he Bar’s whole caser estso n the fact of the statementsthoe
time theyw erem ade,a ndp etitioner’so wnj ustifications’F ull deference
to these factual findings does not justify abdication of our
responsibilityt o determinew hether petitionerfss tatementsc an be
porrirh”d consistenwt ith First Amendments tandards.
Rather this Court is’
.compelledto examinefo r [itselflt hes tatementsin issue
andthecircumstancesunderwhichtheyweremadeto
see whether or not they do carry a threat of clear and
present danger to the impartiality and good order of the
courts or whether they are of a character which the
principles of the First Amendment”‘ protect’
Id. at 1038.( Citationo mitted’e mphasias dded)’
III. LEGAL ARGUMENT
The only factsb eforet he refereew eret hoset hat conway admitted posting on
the JAABlog. The referee conducted no evidentiary hearing’ made no credibility
determinationsa,n dr eceivedn o evidenceth at what Conwayp osted was false’ The
five remarfu found by the referee to have been “false or to have been posted with
recklessd isregarda st o their truth or falsity” arew ithout anys upporti n ther ecorda s
to their falsity. They were opinion or rhetorical hyperbole protected by the First
Amendmenot f the United StatesC onstitution.3
A. Free Speech Is Often Provocative And Challenging
TheF irstA mendmenot owafsa shionedtoa ssureu nfetteredin terchangeo fideas
fortheb ringinga bouto fpoliticala nds ocialc hangedse siredb y thep eople.”C onnick
v.M yers,461U .S.1 38,1 45( 1983)”.s peechisoftenprovocativeandchallenging…
[But it] is neverthelesps rotecteda gainstc ensorshipo r punishmentu, nlesss hown
likely to producea cleara ndp resendt angero f a seriouss ubstantive vil thatr isesf ar
3
Seef l 10o f Reporto f RefereeC. ompareR ayv . Florida Bar,797 So.2 d 566( 2001),w here
therew as an evidentiaryh earing,c redibility determinationsa, nd evidencet hat what Ray said was
false.F urther,R aya ssertedfa cts( i.e.,t he ImmigrationJ udgeli ed andt amperedw ith evidencet)h at
were capableo f determinationa s to their true or falsity.
Rayw asu ltimatelyr eprimandedfo r writing lettersa bouta n immigrationj udge. Further,a nd
unlike this case,t he refereei n Ray mades pecificf indings that the accusationws ere false and
reckless:
The lettersc ontaineda ccusationsw hich are utterly falsea nd they were madei n my way of
thinking at a minimum-at a minimum-with reckless disregard for the truth.
Indeed,if therei s onew ord that characterizethse sel etters,i t is reckless.
I have read that transcript and I have listened to the tape and there w:N
nothing-nothing-thatr anspiredi n that hearingt hat would justiff such outrageouslyfa lse
accusationsA. nd I am utterly appalledt hat this kind of languagew ould be useda gainst
anybodyo n evidenceth at barelyq ualifiesa s sketchy.
Id. at557,n. l. Heret herew eren o suchf indingsb eyonda very generabl oiler-platefi nding.E ven
weret heres pecificf indingsh erel ike thosei n.l?ayt,h is Courtc ana nds houldr eviewt hosef indings
de novo. The factual record here shows no falsity in Conway’s blog postings.
above public inconvenience, annoyance, or unrest.” Terminello v. City of Chicago,
377 U.S. r,4 (t949).
B. Attorney Criticism of Judges- Especially Truthful Criticism
or Opinion — is Protected by the First Amendment
Judges are public figures. Garrison v. Louisiana,379 U.S. 64, 85 S.Ct. 209,
2l5,13L.Ed.zd,I25 (1964);RepublicanPartyvW. hite,536US7 65,781,I22S .C t.
2528,2538;153L . F,d.694( 2002x”[d]ebateo n the qualificationso f candidatesis at
the core of our electoral process and of the First Amendment freedoms, not at the
edges.”) (internal quotation marks omitted).
Attorneys are in a unique position to understand, and criticize,the functioning
of ourjudicial system and itsjudges. Attorney criticism ofjudges is protected forthe
same reason that criticism of other public officials is protected. In Re Green, 11 P.
3d 1078,1 085( 2000xthe oore asont hat the protectiono f attorneyc riticism ofjudges
is similar to the protection of criticism of other public officials…[is to] safeguard []
public discussion of governmental affairs.”)(citations omitted). See also Standing
Committee on Discipline v. Yagman, 55 F.3d 1430,1438 (9’h Cir. 1995); Fieger v.
Michigan Supreme Court, 2007 WL 2571975 (E.D. Mich.); Oklahoma Bar
Association, v.Porter, 766P.2d958, 1988 OK 114 (1988); and State Bar v.
Semaan,508 S.W.zd429 (Tex. Ct. App. 1974).
7
C. Truth is an Absolute l)efense to Factual Statements
ForFirstAmendmentpu{postehse,l ineb etweenfa ctando pinioni s notalways
obvious.S tatementcsr iticizing aj udge mayn ot be punishedu nlesst hey arec apable
of being proved true or false; statementso f opinion are protectedb y the First
Amendmenut nlesst hey “imply a falsea ssertiono f fact.” SeeM ilkovich v. Lorain
JournalC o.,497U .S.1 , 19,l l0 S.Ct.2 695,27061, 11L .Ed.2d| (1990)E. ven
statementsth at at first blush appear to be factual are protectedb y the First
Amendmenitf they cannotr easonablby ei nterpreteda ss tatinga ctualf actsa bouttheir
targetS. eeH ustlerM agazineI,n c. v.F alwell,485U .S.4 6,5 0, 108S .Ct.8 76,879,99
L.Ed.2d41(1 e88).
While Conway submits that his postings which led to these disciplinary
proceedingsw erep ure opinion or, in somec aseso, pinion in the form of rhetorical
hyperbolet,h e factsu nderlyingt hoseo pinionsw eret ruthful. Therei s no disputea s
to what transpiredin JudgeA leman’sc ourtroomr egardingC onway’sc lient or the
other defendantsw ho were arraignedo n October 18, 2006.N or are there factual
disputesa boutJ udgeA leman forcing defendantsto trial without adequateti me to
prepareo, r the fact that shei gnoredF la. R. Crim. P. 3.160(d) which entitlest he
defendan”tt o a reasonablteim e in which to preparef or trial.”
Notably, the refereem aden o findings that the underlying statementsp ostedo n
the blog were false or that Conway’s account of the trial judge’s conduct during the
period of October 2006 implied a false assertion of fact. There simply has been no
showing or attempt by the Bar to show that those facts were anything but truthful.
Attorneys may be sanctioned for impugning the integrity of ajudge or the court
only if their statements are false; truth is an absolute defense. See Garrison v.
Louisiana,379 U.S. at 74. Moreover, the Bar bears the burden ofproving falsity. See
PhiladelphiaN ewspapersI,n c. v. Hepps,475 U.S. 767,776-77, 106 S.Ct. 1558,
1563-643, 9 L.Ed.2d7 83( 1986).4
D. Opinions and Rhetorical Hyperbole are Entitled to First
Amendment Protection
Statementso fo’rhetoricalh yperbole”a ren’ts anctionablen, or ares tatementsth at
use language in a “loose, figurative sense.” See National Ass’n of Letter Carriers v.
Austin,4l8 U.S.2 64,284,94S .Ct.2 770,2781,41L.F,d.2d74(51 974)( useo f word
‘otraitor’could not be construed as representation of fact); (use of word “blackmail”
4
The respondennt otest hat in footnote 3 of Ray this Court statedt hat *[tay also arguest hat
the burdeno f proof was improperlys hiftedt o him to substantiateh is statementsH. owever,t herei s
no debatet hat the statementsa t issuec oncerned’t he qualificationso r integrity of a judge,’ R.
RegulatingF la. Bar 4-8.2(a)a, ndw e seen o error in the burdent hen shiftingt o Ray to providea
factualb asisi n supporto fthe statements.”R espondenrte spectfullys ubmitst hat the burdens hifting
specifiedi n Ray is inconsistenwt ith Heppsa nd its progeny.
could not haveb eeni nterpreteda s chargingp laintiff with commissiono f criminal
offense).B resler,398 U.S. at 14. Seea lso,J usticeso f AppellateD ivision, First
Departmenvt. Erdmann3, 3 N.Y.2d 559,560 347 N.Y.S.2d4 4I,301 N.E.2d
426(1973)(Wherlea wyerw asq uoted inmagazinea rticlet o effectt hatt herew eref ew
trial judgesi n certainj udicial departmentws ho left guilt or innocenceto jury, that
appellateju dgesi n samed epartmenwt ere “whoresw ho becamem adams,”a ndt hat
only way to become a judge was “to be in politics or buy it,” lawyer was improperly
censuredi;s olatedin stanceso f disrespecfto r law andc ourtse xpressebdy vulgara nd
insultingw ordso r otheri ncivility, utteredw, ritten,o r committedo utsidep recinctso f
court,w ithoutm ore,a ren ot subjecto professionadl iscipline.).
1. All of Conway’s Postings were Opinions
or Rhetorical Hyperbole
All of Conway’s postings were opinions, some in the form of rhetorical
hyperbole.T hose opinions were: “Evil, Unfair Witch”; ‘oseeminglym entally ill”;
“ugly, condescending attitude”; “unfit for her position and knows not what it means
to be a neutral arbiter,” and’othere’sn othing honorable about that malcontent.”
The statement’oEvilU, nfair Witch” is an opinion in the form of a rhetorical
hyperbole. “Hyperbole” is defined as meaning”Rhet. An extravagant statement or
figure of speech not intended to be taken literally, as in ‘to wait an eternity.”‘
t0
Random House Dictionary of the English Language 698 (1’t Printing 1966)- On
Hallowee n,2006,the respondent referred to Judge Aleman as a mean spirited witch.
His comment that Judge Aleman was a o’witch” is an example of figurative speech-
Conway’s use of the words “evil” and “unfairo’ are also protected by the First
Amendment. As noted in Austin,
to use loose language or undefined slogans that are part of the
conventional give-and-take in our economic and political controversies
– like ‘unfair’ or ‘fascist’ — is not to falsify facts. Such words were
obviously used here in a loose, figurative sense’.’
Austin,4lS U.S. at284 (Emphasisa dded).
The statement” seeminglym entally ill” is an opinion becauseit too is in the
form of rhetorical hyperbole. In Tech Plus, Inc. v. Ansel,59 Mass. App. Ct.12,16-
l7;793 N.E.2d 1256,1267(2003t)h e plaintiff soughtc ompensationa fter one of his
superiors told a third party that he was “sick” and “mentally ill.” In reviewing the
matter the court found that, “[v]iewed in the context in which they were made, these
statementsc ould not reasonablyh ave been understooda s assertionso f acfual fact …
as distinct from orhetorical hyperbole.”‘ Id. at t267. Further, in Keller v. Miami
Herald publishing co., 77gF.2d7lI,7l7 (1ld’cir. 1985) the court noted that
,,Florida courts have adopted the rule…[that] [t]he court must… accord weight to
cautionary terms used by the person publishing the statement.” (Internal quotation
1l
markso mitted).T hew ord’oseeminglyf”a lls squarelyin to thec ategoryo fcautionary
termsw hich shouldb e weightedt owardsa finding of First Amendmenpt rotection.
The statements” tgly, condescendinagt titude,” “unfit for her positiona nd
knowsn ot whati t meansto bea neutrala rbiter,”a nd” there’sn othingh onorablea bout
that malcontent”e xpresso pinionsb ecausen one of the phrasesc an reasonablyb e
understootdo be an assertiono f actualf act.F alwell,485U .S.a t 50. Additionally,
all threes tatementesm ploy” loosel anguage”w hich arepartofthe” give-and-takein
our…c ontroversiesA.ou’s tin,4l8 U.S. at284. Givent he contexti n whicht hese
statementsw ere made, each of them expresso pinions protectedb y the First
Amendment,a s long as they had an objectiver easonableb asis in fact for their
issuance.
2. Conway had an Objectively Reasonable
Basis in Fact for his Opinions
Conway’s postings reflected that Judge Aleman was setting trials eight
business days after arraignments and with only three business days notice.
Reasonable people can disagree on what constitutes a reasonable amount of time to
preparef or trial, but it is occasionally next to impossible to find reasonablenessin
some positions. For instance, the Sixth Amendment ofthe United States Constitution
providesi n relevantp art that “[i]n all criminal prosecutionst,h e accuseds hall enjoy
t2
the right…t o havec ompulsoryp rocessfo r obtainingw itnessesin his favor…”
(Emphasisa dded).
At a minimum, proper trial preparation includes insuring that compulsory
processis obtainedo ver witnessesh avingt estimonyf avorablet o an accusedfa cing
imprisonmentD. efendantso ftenn eedt o subpoenafo r trial law enforcemenot fficers
involved in the investigationo f their cases.H owever,t he October3 0ft defendants
werep recludedf rom obtainingc ompulsoryp rocesso ver law enforcemenot fficers
becausoef theo perationo f Fla.S tat.$ 48.031 (4)(a)3w, hichp rovidesth atd esignated
employeesa re to accepts ervicew ith respectt o “[s]ervice of a criminal witness
subpoenau pona law enforcemenot fficer,[but thatl no suchd esignatede mployee
is requiredt o accepts ervice[ i]f the appearanced atei s lesst han 5 daysf rom the
date of service.” (Emphasias dded).
Additionally, if the defendantsw antedt o engagei n reasonabled iscovery,
JudgeA leman’sa cceleratedtr ial datesl eft themw ith no othero ption but to forfeit
their speedytr ial rights.5
s Therei s no suggestionh eret hat the facts underlyingt he posteds tatementsw ere in any
way twisted or distorted. “If the [posted underlying facts] had been truncated or distorted in such
a way as to extractthe ffive remarksl from the context in which [they were] used” in the posting,
Conway’so pinionsm ight not be protectedb y the First AmendmentB. resler,3 98 U.S.a t 13.
o’But the [underlying facts] were accurate and fuII.” Id. at 13. [n short, Judge Aleman’s rulings
providedt he respondenwt ith an objectivelyr easonablbea sisi n fact to expressth e opinions
which he posted the following day on the JAABlog.
t3
E. There is no Factual or Legar support for the Baros
Allegationso r the Referee’sc onclusionst hat conway’s
statementsw ere Falsea nd rherefore, Noneo f conway’s
statementsw ere Made with Knowing Falsity or Reckless
Disregard for the Truth
Neither The Florida Bar nor the referee have brought forth any proof of any
kind suggestingt hat any of the factual representationms ade by Conway and
discussedh ereina bovew eref alse. Additionally,w hena ll of the statementos f fact
are reviewedi ndividually it is apparentt hat no evidenceh as been presentedto
substantiateth e existenceo f a false statemenot f fact. ln Austin the Court noteda
fundamentarl ule of law in casesw ith First Amendmenti mplicationsc ontaining
statementsw hich need to be examinedf or potential liability of monetary or
professionasl anction.T herein,t heC ourtd eclaredth at” [blefore the test of reckless
or knowing falsity can be met, there must be a false statement of fact.” Austin,
418U .S. at284.( Emphasias dded).A ccordingly,s incet her ecordb eforet his Court
is void of anyf alses tatementosf factt herei s noj ustifiabler easonto explorew hether
any of the factual statementsw ere made with knowing fatsity or with reckless
disregardfo r the truth.
F. Attorneys Play an Important Role in Exposing
Problems within the Judicial Svstem
t4
In its showc auseo rdert his Courth asr equestedth att her espondenbt em indful
ofthe policyi dentifiedin Fla. Bar v.R ay,797S o.2 d 556( Fla.2 001)o ‘thatattorney’s
comments’p lay an importantr ole in exposingv alid problemsw ithin the judicial
system.”‘ Courtsh aver ecognizedth at attorneysw ho work within the systems hould
not be inhibited from discussingw hat transpiresw ithin criminal courtrooms. As
noted in Gentile,
Because attorneys participate in the criminal justice system and are
trainedi n its complexitiest,h ey hold uniqueq ualificationsa s a source
of information about pending cases. Since lawyers are considered
crediblei n regardt o pendingl itigation in which they aree ngageda nd
arei n oneo fthe mostk nowledgeablpeo sitionst,h ey area crucials ource
of informationa ndo pinion… If the dangerso f their speecha risef rom
its persuasivenesfsro, m their ability to explainj udicial proceedingso, r
from the likelihoodt he speechw ill be believedt,h esea ren ot the sorto f
dangersth at can validater estrictions.T he First Amendmendl oesn ot
permit suppressioonf speechb ecauseo f its powert o commanda ssent.
(Internal quotation marks omitted)
Gentile,50Ul .S.a t 1056,1 057.
ln Greent heC oloradoB ar attemptedto disciplinea lawyerw ho hadp ublished
his opinion that a local judge was a racist. After finding that the lawyer had an
objectivelyr easonablbea sisi n fact for his opiniont he courts tated:
Restrictionso n attorneys peechb urdenn ot only the attorney’sri ght to
criticizeju dges,b ut alsoh inderthep ublic’sa ccestso thec lasso fpeople
in the best position to comment on the functioning of the judicial
system. Interest about judges is important in Colorado, where the
l5
public periodically votes whether to retain judges. The right of a lawyer
asa citizent o publiclyc riticizea djudicatoroy fficials. …i s particularly
meaningfulw here…t he adjudicatoryo fficials ares electedth rought he
electives ystem(. Internalq uotationm arkso mitted).
Green, at 1085. As noted above in White “[d]ebate on the qualifications of
candidates is at the core of our electoral process and of the First Amendment
freedoms, not at the edges.” (internal quotation marlcs omitted). W’hite,536 US at
781. Accordingly, Conway was performing the legitimate function of discussing
the qualifications ofajudicial official when he posted his comments pertaining to the
matters occurring within Judge Aleman’s court room.
lnBuckleyv. Valeo,424U.S. I;96 S. Ct. 612;46 L. Ed. 2d659 (1976)the
Court reviewed its prior opinions which explained that,
Discussion of public issues and debate on the qualifications of
candidates are integral to the operation of the system of government
established by our Constitution. The First Amendment affords the
broadest protection to such political expression in order ‘to assure [the]
unfettered interchange of ideas for the bringing about of political and
social changes desired by the people.” Roth v. United States, 354 U.S.
476,4 84 (1957). ..’lTlherei s practicallyu niversala greementth ata major
purpose of that Amendment was to protect the free discussion of
governmental affairs,… of course includ[ing] discussions of
candidates…M.’ illsv. Alabama,3 84 U.S.2 14,218( 1966).T hisnomore
than reflects our ‘profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide-open,’
Neyv YorkTimes Co. v. Sullivan, 376 U.S. 254, 270 (1964).In arepublic
where the people are sovereign, the ability of the citizenry to make
informed choices among candidates for office is essential, for the
T6
identities of those who are elected will inevitably shape the course
that we follow as a nation.
(Emphasisa dded).L astly,a lthoughC ONWAY’s wordsw erei nitially publishedo n
a bloga ndn otb y thep resst,h et eachingos f SheppardvM. axwell,384U .S.3 33,3 50;
86 S.C t. 15 07, 151 5,I 516;1 6L . Ed.2 d 60A,6 13( t966) area ppropriate.
A responsiblep ressh as alwaysb eenr egardeda s the handmaideno f
effectivej udicial administratione, speciallyi n the criminal field. Its
functioni n this regardi s documentebdy an impressivere cordo f service
over several centuries. The press does not simply publish information
about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism. This Court has, therefore,
been unwilling to place any direct limitations on the freedom
traditionallye xercisedb y the news mediaf or what transpiresi n the
court room is public property. (Internalq uotationm arkso mitted).
(Emphasisa dded).
The respondendt uring Octobero f 2006 was of the opinion that numerous
defendants’ procedural rights were being trampled upon by Judge Aleman. He
observedJ udgeA leman implementa first trial date settingp olicy which stripped
defendantso f their Sixth Amendmentr ight to compulsoryp rocessa nd rendered
virtually meaninglestsh eir right to a speedytr ial asp rovidedf or in Fla. R. Crim. P.
3.191. Accordingly,h e perceivedJ udgeA lemant o be engagedin a courseo f
conducti ntentionallyd esignedto force defendanttso waivet heir speedytr ial right
L7
as promulgated for cogent reasons by this Supreme Court. He funher viewed these
actions to be in violation of Fla. Code Jud. Conduct, Canon 2,4. which provides that,
“Ajudge shall respect and comply with the law and shall actatall times in a manner
that promotes public confidence in the integrity and impartiality of the judiciary”
and Canon 3B(2) which provides that, “Ajudge shall be faithful to the law and
maintain professionalc ompetencei n it.” It follows that by posting his comments- –
often in the form of rhetorical hyperbole — on the JAABlog about Judge Aleman’s
court room behavior, Conway was exercising what James Madison had declared to
be his First Amendment “right of freely examining public characters and
measures…”4 Elliot’s Debatesi n the FederalC onstitution( 1876)p . 575.( Emphasis
added). Accordingly, Conway’sfive remarlcs are protected by the First Amendment
ofthe constitution and this Court should reject his tendered conditional plea of guilty
to professional misconduct and order that the Florida Bar’s complaint against him be
dismissed.
CERTIFICATE OF FONT COMPLIANCE
I herebyc ertif that the font requirementso f Fla. R.App.P.9.210(a)(2) have
been complied with.